SOFT LAW AND THE RETURN OF MIGRANTS IN THE EUROPEAN UNION: BETWEEN NORMATIVE FLEXIBILITY AND THE FRAGILITY OF HUMAN RIGHTS

Abstract

This article analyzes the adoption by the European Union’s (EU) of soft law agreements with countries of origin or transit of migrants to enforce the return of those who do not meet the requirements for entry and stay in its territory, nor the criteria for the granting of international protection. The study aims to assess whether these instruments are capable of ensuring the application of international norms for the protection of migrants' rights within the EU's policy on the return of irregular migrants, especially in relation to four key factors: (i) lack of transparency in the formulation and implementation of the agreements; (ii) potential violations of the non-refoulement principle; (iii) lack of participation by the European Parliament in the decision-making process; and (iv) weaknesses in the possibility of judicial review of the procedures adopted. The research was conducted using an exploratory bibliographic methodology, through the selection of academic literature and data collection, in addition to the analysis of case law and the international and EU legal frameworks. The results obtained indicate that soft law instruments do not ensure the effective compliance with international standards for the protection of migrants' rights adopted by the EU, since, by not requiring compliance with the formal procedures for drafting and ratifying international treaties, they function as mechanisms of normative flexibility, enabling the conclusion of agreements with countries that would not meet the minimum conditions to sign formal instruments, and relegating to the background the obligation to protect individuals affected by the return process.